Knocking on the Bedroom Door
Time, July
14, 1986
By George J. Church.
The opinions were occasionally sarcastic as well as blunt. But then, the issue was one
that arouses intense emotion among legions of Americans. The basic questions: May a state
define some types of activity widely practiced by homosexuals as a crime? Or do the
anti-sodomy laws of 24 states violate the constitutionally protected right to privacy that
the court has been expanding in decisions stretching back more than 60 years?
To the dismay of gay-rights activists and many civil libertarians—and to the
delight of religious Fundamentalists and other anti-gays—the Supreme Court ruled 5 to
4 last week that a state may indeed outlaw sodomy among homosexuals, even if it is
practiced by consenting adults in the privacy of a home. The ruling has implications far
beyond the legal result. By deferring to the state as moral arbiter in this case, the
court raises essential questions about its role as the guardian of individual freedoms
against the will of the majority. The case decided last week began in 1982 when Michael
Hardwick was late paying a fine for drinking on the streets of Atlanta. A police officer
with a warrant entered Hardwick’s bedroom and found him engaged in oral sex with
another man. The officer arrested both for violating a Georgia statute that prohibits
"any sexual act involving the sex organs of one person and the mouth or anus of
another" (punishment: 1 to 20 years in prison). Fulton County District Attorney Lewis
Slaton declined to prosecute, but Hardwick filed suit anyway, asking for a declaratory
judgment that the law is unconstitutional.
Though the Georgia statute was deliberately framed to apply to everyone, Justice Byron
White’s majority opinion (joined by Chief Justice Warren Burger, his designated
successor William Rehnquist, Sandra Day O’Connor and Lewis Powell) was careful to
"express no opinion" about sodomy among heterosexuals. Hardwick’s suit,
said White, did not pose that question. However, Powell suggested in a concurring opinion
that actually imprisoning gays for their sexual conduct might violate the Eighth
Amendment’s ban against "cruel and unusual punishments."
But the majority rejected as "unsupportable" the idea that "any kind of
private sexual conduct between consenting adults is constitutionally insulated." True
enough, White wrote, the court has recognized a right to privacy in cases involving
education, marriage, childbearing and abortion. But these areas, White asserted, have
"no connection" with homosexuality. Whether or not they are "wise or
desirable," he said, prohibitions against homosexual conduct have "ancient
roots." For example, sodomy was "forbidden by the laws of the original 13 states
when they ratified the Bill of Rights." White added, "To claim that a right to
engage in [homosexual sodomy] is ‘deeply rooted in this nation’s history and
tradition’ . . . is, at best, facetious."
More generally, the majority insisted that the Supreme Court should display "great
resistance" against any attempt "to discover new fundamental rights" not
enumerated in the Constitution. "Otherwise," wrote White, "the judiciary
necessarily takes to itself further authority to govern the country without express
constitutional authority." For years conserva- tives have attacked judges,
particularly Supreme Court Justices, for reading their own moral and political views into
the Constitution. White’s opinion was an unusually explicit acknowledgment of that
criticism by a Justice, and it may portend greater deference by the court to the actions
of elected officials.
Harry Blackmun’s passionate dissent (joined by William Brennan, Thurgood Marshall
and John Paul Stevens) asserted that "only the most willful blindness could
obscure" the connection between sexuality and the right to privacy. "No matter
how uncomfortable a certain group may make the majority of this court," wrote
Blackmun, that does not justify denying homosexuals the right to privacy. As for
constitutional authority, the dissenters relied on the due-process clause and the Fourth
Amendment’s guarantee of "the right of the people to be secure in their persons
[and] houses." Wrote Blackmun: "The right of an individual to conduct intimate
relationships in the intimacy of his or her own home seems to me to be the heart" of
the protection of privacy.
Essentially, the decision leaves it up to each state whether to tolerate or forbid
homosexual sodomy. Though all 50 states had anti-sodomy laws as late as 1961, those
statutes have since been repealed or struck down by courts in 26 states; the Supreme
Court’s ruling will have little im- mediate effect there. Even the laws still on the
books in 24 states—19 states and the District of Columbia criminalize all sodomy;
five have laws that apply
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